Lis pendens in civil and commercial matters after the exit of the UK from the European Union

In the very same days when the European Commission has blocked the application made by the United Kingdom for acceding to the 2007 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Lugano Convention” – the decision is available here), the Italian Supreme Court has handled certain aspects of international procedural law – particularly with regard to international lis pendens in civil matters – following the United Kingdom’s exit from the European Union.

The dispute settled by the decision no. 9863 of 15 April 2021 had arisen out of an insurance contract entered into between a company specialised in the sale of fishing clothes (the “Company”) and several insurance companies (the “Insurance Companies”). More specifically, in the context of proceedings for setting aside and repealing a payment injunction issued by the Court of Treviso in favour of the Company, the Insurance Companies objected that:

a) An exclusive jurisdiction clause in favour of the English Courts was included in the insurance contract; and

b) The same proceedings had previously been lodged before the High Court in London.

In light of the aforementioned objections, the Court of Treviso, by order filed on 17 December 2019, declared the suspension of the set aside proceedings, pursuant to Article 31.2 of Regulation (EU) no. 1215/2012 (“Brussels I Bis Regulation“). This provision requires the suspension of the proceedings brought before any court other than the one chosen by the parties under an exclusive jurisdiction clause.

The Company appealed to the Supreme Court seeking a ruling on jurisdiction, inter alia claiming that the Brussels I Bis Regulation had become inapplicable by virtue of the United Kingdom’s withdrawal from the European Union.

In the mentioned decision, the Supreme Court rejected the plea, based on the application of Article 67 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, the so-called “Withdrawal Agreement”.

According to this article, European law – including, inter alia, the provisions of the Brussels I Bis Regulation – remains applicable to all proceedings instituted before 31 December 2020.

On the other hand, the question relating to the laws applicable to proceedings introduced as from 1 January 2021 is likely to be a much debated issue in the next future, especially following the European Commission’s decision to deny the access of the UK to the Lugano Convention.

From an Italian law perspective, as regards the recognition and enforcement of judgments, the provisions of private international law set out in Law 218/1995 shall apply.

With regard to choice of court agreements in civil and commercial matters instead, the United Kingdom has autonomously acceded to the Convention of 30 June 2005 on Choice of Court Agreements (the so-called “Hague Choice of Court Convention”), which is applicable in cases where two parties belonging to Contracting States have agreed on an exclusive choice of court.

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